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The End of Affirmative Action?

Fisher v. University of Texas at Austin, which the U.S. Supreme Court agreed to hear in February and scheduled for October, is the first case concerning affirmative action to reach the country’s highest court since 2003. While the plaintiff, Abigail Fisher, a white woman from Texas who is currently wrapping up her studies in Louisiana, might win and abolish affirmative action, the case presents an important opportunity to open up discussion on developing innovative, race-neutral means to increase equality.

In only two cases before — Regents of the University of California v. Bakke in 1978 and Grutter v. Bollinger in 2003 — has the Supreme Court debated and upheld the constitutionality of race as a factor in university admissions processes. Both cases concluded with split decisions, five to four, and multiple opinions, ultimately upholding the prerogative of universities to use racial considerations in accruing a “critical mass” of minority populations (Grutter) but short of establishing fixed quotas (Bakke).

Indeed, in their 2009 verdict, the District Court that initially heard the Fisher case, ruled that the University of Texas (UT) could apply affirmative action, “because, before 2005, UT did not have a critical mass of underrepresented minorities.” (The “underrepresented” includes blacks and Hispanics, while Jews and Asians, the court argued, in contrast, are “overrepresented.”) While UT’s 10% Plan, Texas House Bill 588, might not have helped and may have even decreased minority enrolment, taking into consideration these forms of race-neutral factors that force competition within respective high schools, might help.

Ironically, Texas House Bill 588 was part of the cause of Fisher’s suit. Like many others, Fisher had a high GPA but was not in the top 10% of her high school class, although she contends that her marks would fall within the top 10% in an overall pool of UT’s applicants. However, UT rejected her in the following stages of the admissions process — when they began considering holistic factors, including race.

Fisher argues that the Grutter decision, in establishing a broad goal for multi-ethnic student populations, is unconstitutional under the “Equal Protection Clause.” If the Supreme Court agrees with Fisher and takes a position against affirmative action, then many programs designed to promote minority enrolment — specifically those that seek to make race a factor in the admissions process — will become obsolete. Such a decision suggests a bleak future for improving racial inequalities.

And, while it is well established that the domestic political situation in the U.S. has polarized to unprecedented proportions, such polarization so too has made its way onto the Supreme Court. One of the Court’s most controversial Justices, Clarence Thomas, is black and an avowed conservative. In 2003, he voted in opposition of affirmative action. He cited the 14th Amendment – the constitutional guarantor of equality under the law – in arguing for a prohibition on either refusing consideration or granting special consideration to individuals on account of race. Another Justice, Antonin Scalia, has declared himself “the Justice from The Tea Party.” In addition, three other judges, including Chief Justice Roberts, were nominated to the bench by President Reagan and the second President Bush.

Presidents Clinton and Obama have collectively nominated four judges, but one of Obama’s nominees, Elena Kagan, has recused herself from the case. It is quite probable that the court will strike down affirmative action along partisan lines — by the widest margin to date, five to three. While opponents of affirmative action are arguably taking advantage of the current political climate, there is some cause to be optimistic for the future — this case could lead to greater political innovation.

Recent studies have shown that inequality in education is increasingly dependent on wealth, while the opposite trend is developing regarding race. Moreover, the Great Recession has pushed income inequality to the forefront of political discourse, with #Occupy movements sprouting in major cities across the U.S. and the world. This presents a related narrative: The persistence of unemployment and its effects on the working-class.

While racial inequality has persisted, income inequality (irrespective of race) has ballooned. Yes, further impediments to opportunities could be detrimental to minority populations. Voiding affirmative action will probably not help racial inequality in the short-term, but considering the ways that race-neutral factors can help build equitable communities will be beneficial in the long-term.

While the use of affirmative action in the admission processes may end, the 10% Plan presents an interesting scenario, one that should garner greater debate in the coming months.


– Jonathan Newburgh

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